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Public Law Journal: Spring 2016, Vol. 39, No. 2

Kirby v. County of Fresno: Can a City or County Make It a Crime to Cultivate or Use Medical Marijuana?

By Bonnie C. Maly*

Since California decriminalized the use of medical marijuana over 20 years ago, some cities and counties have found ways to keep medical marijuana dispensaries entirely out of their jurisdictions. A new law enacted in 2015, the Medical Marijuana Regulation and Safety Act (MMRSA) (Bus. & Prof. Code §§ 19300-19355), may enable local entities to ban dispensaries more easily, but it also specifies that it does not "supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements." (Bus. & Prof. Code § 19315(a)). Notably, enacting or enforcing local criminal ordinances is not in this list.

FRESNO COUNTY’S ORDINANCE

In 2014, before enactment of the MMRSA, Fresno County followed the course of other localities and banned the dispensing, cultivation, and storage of medical marijuana in all its zoning districts, and classified any violation of this ban as a public nuisance. But Fresno County went further; in the same ordinance, it also attempted to re-criminalize the dispensing, cultivation, and storage of medical marijuana, despite California state law clearly allowing persons using medical marijuana an affirmative defense against criminal prosecution in state court. (See Health & Saf. Code § 11362.5).

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